The unbrotherly 'brethren'

Some commentators seem to think that the widely syndicated book, "The Brethren" -- which is not very brotherly -- will do the Supreme Court in. I doubt it. The main effect of what robert Woodward and Scott Armstrong have written is to picture the austere-looking, black-robed justices as just like other humna beings, sometimes acerbic, far from infallible, and occasionally self-centered -- confident in the rightness of their own prejudices.

What is noteworthy is that the authors, after exhaustively dredging anonymous sources, come up with no evidence whatsoever that even a tint of corruption has touched the proceedings of the court, that it has been tainted by political favoritism or moved by outside influence.

J. Harvie Wilkinson III, who clerked for Justice william Powell during two terms of the court in 1971 and 1972, makes this comment from his inside knowledge:

"'The Brethren' is a book that desperately needs context. My fellow law clerks , I would insist, are persons of integrity. Most, though not all, were anti-conservative, anti- Nixon, anti-Burger. The Chief Justice entered the Supreme Court disadvantaged."

I am not extenuating the jealousies, pettinesses, and peccadilloes reported by Woodward and Armstrong as affecting so much of the relations among the justices on the Burger court. But I can put these things in perspective on the basis of a fair amount of personal research.

There was far more feuding and recrimination during the Warren era than during the Burger era. They were particularly manifest in the relations between Justices Douglas, Black, and Frankfurter. Over the span of considerable history , few justices castigated a majority with rhetoric in written dissent or from the bench in oral pronouncements as did Black and Douglas.

My observation is that little such public acrimony has occurred since 1968.

Close 5-to-4 and 6-to-3 decisions on major cases have always led to sharp dissenting opinions. They do today, but if any change has occurred in recent years it has been to lessen divisiveness.

Those who follow the court closely and apparently have no axe to grind affirm that there has been on the whole less apparent tension among the justices during the last ten years than at any time since William Howard Taft was the Chief Justice. Nothing has occurred recently that compares to the way McReynolds snubbed Brandeis and Cardozo or to the public feud between Black and Jackson or to the outbursts from the bench between Warren and Frankfurter.

It is evident from the record that the Supreme Court today is less divided into blocs than many of its predecessors. Take two examples: from 1933 to 1937 Justices McReynolds, Butler, Van Devanter, and Sutherlnd lined up often against Cardozo, Brandeis, and Stone. And there were great tensions in the 1940s between the Black-Douglas-Murphy- Rutledge wing of the court and other justices such as Stone, Roberts, Jackson, and Frankfurter.

In the sense of stamping his own jurisprudential agenda on his era, no chief justice really dominates the Supreme Court. Burger is not doing so. Warren did not do so. The justices are too talented, independent, self-confident to permit it to happen. That's good.

A chief justice is a peer among peers when it comes to decisionmaking. He can never dictate; he rarely dominates. Earl Warren was a consensusmaker and his great achievement was in producing a unanimous decision in Brown v. Board of Education (the 1954 school desegregation case) after a majority had been reached before his appointment.

I am not arguing that the court is doing better under Burger than it did under Warren. Or that the Warren court did better than the Vinson or the Hughes or the Taft court. That may depend on how well you like the decisions.

Judges are certainly not infallible -- no more than columnists.